(1) INTRODUCTION
The Indian Penal Code (IPC) is a comprehensive code, intended to cover all substantive aspects of criminal law. It has since been amended several times and is now supplemented by other criminal provisions. It applies to whole of India except Jammu and Kashmir. In the state of Jammu and Kashmir instead of IPC, the Ranbir Penal Code (RPC) is applicable which is similar to the IPC. After independence, Indian Penal Code was inherited by Pakistan and Bangladesh, formerly part of British India. It was also adopted wholesale by the British colonial authorities in Burma, Sri Lanka, Malaysia, Singapore and Brunei, and remains the basis of the criminal codes in those countries.
The IPC is influenced by Jeremy Bentham’s theories of ‘scientific’ legislation and ‘universal’ jurisprudence. The IPC has eliminated the common law and offered a modern presentation and progressive rationalisation of English criminal laws. The IPC remains an impressive example of comprehensive law reform, despite retrograde changes introduced in the 1860 enacted version which continued with later colonial amendments, adoptions elsewhere in British South Asia and after independence.
(1.1) AIM AND OBJECTS OF IPC :
The object of the Act is to provide a general penal Code for India. Though, the Act does not repeal the penal laws which were in force at the time of coming into force in India. This was so because the Code does not contain all the offences and it was possible that some offences might have still been left out of the Code, which was not intended to be exempted from penal consequences. Though this Code consolidates the whole of the law on the subject and is exhaustive on the matters in respect of which it declares the law, many more penal statutes governing various offences have been created in addition to the code.
Thomas Macaulay while writing on the draft of IPC said, “We have got rid of the punishment of death, except in the case of aggravated treason and wilful murder. We shall also get rid indirectly of everything that can properly be called slavery in India. There will remain civil claims on particular people for particular services, which claims may be enforced by civil action; but no person will be entitled, on the plea of being the master of another, to do anything to that other which it would an offence to do to a free man.”[1]
(1.2) HISTORICAL DEVELOPMENT :
As far as origin of the penal code is concerned, the root may be found long back in Dharmshashtra and Dharmshutra including Manusmriti followed by Yajlavlakya-smriti and so on… other smritis. During the Moghul rule, the court administered the “Sharia” to the exclusion of Hindu law. The Islamic law gave way to English Criminal Law with the increase of British influence in Indian subcontinent. Before 1860, the English criminal law, as modified by several Acts was administered in the Presidency-Towns of Bombay, Calcutta and Madras.
The Indian Penal Code (IPC) is the product of the work of successive Law Commissions constituted by the British during the 19th century. In 1834, the first Indian Law Commission under the chairmanship of Thomas Babington Maculae was constituted with other three commissioners (McLeod, Anderson and Millets). The Commission had submitted first Draft Code to the Governor General in Council on 14th October, 1837. Elements were also derived from the Napoleonic Code and from Edward Livingston’s Louisiana Civil Code of 1825. On 26th April 1845 the Second Indian Law Commission was constituted who has submitted its report on the Draft Penal Code in two parts in 1846 and 1847, respectively. The Draft Code was revised and presented to the Governor General in Council in 1856 and the revision was done by Bethune and Peacock (Law Members). Finally, the Indian Penal Code was passed on 6th October, 1860 and put into force with effect from 1st January, 1862. Unfortunately, Macaulay did not survive to see his masterpiece come into force, having died near the end of 1859.
(1.3) DIFFERENCES BETWEEN ACT AND CODE :
The Code is also an Act. Both are enacted by Parliament and assented by the authority (President or Governor in India, as the case may be) followed by Notification in official gazette. An Act is a bill which is acted upon by a legislative body for the purpose of creating a law, to fulfill the necessity of the requirement with special aim and objects. It may be introduce new law or amendments in the existing enactment.
On the other hand, a Code is a collection or compilation of laws, regulations and rules that depict a procedure. A Code is a type of legislation that purports to exhaustively cover a complete system of laws or a particular area of law as it existed at the time the Code was enacted, by a process of codification. Thus it is clear that a Code is a special type of action made by legislature. For an example – Indian Penal Code, Code of Criminal Procedure, Code of Civil Procedure, the Juvenile Justice (Care and Protection of Children) Act, 2000, etc.
(1.4) DIFFERENCE BETWEEN ‘SPECIAL LAW’ AND ‘LOCAL LAW’
A ‘special law’ is a law applicable to a particular subject, whereas, a ‘local law’ is a law applicable only to a particular part of India. Section 5 of IPC states that certain laws not to be affected by this Act. It states that nothing in this Act shall affect the provisions of any Act for punishing mutiny and desertion of officers, soldiers, sailors or airmen in the service of the Government of India or the provisions of any special or local law. It means IPC has also accepted some special and local laws which were applicable at that time and were not repealed. It also empowered the Parliamentarian to enact any special and local laws as required by society.
The National Crime Record Bureau (NCRB) analyses the crimes into two categories crimes reported under IPC and crimes reported under Special and Local Laws (SLL). The data of NCRB is based upon the actual crimes reported by the Police.
(1.5) THEME OF THE IPC :
Originally, the IPC was comprises of 23 (now 26) Chapters and 511 sections. Some amendments had taken places at various times. Some of them may be narrated – the Amendment Acts of 1882, 1886; 1913 (inserted criminal conspiracy); 1949 (remove whipping); 1955 (substituted Transportation into life imprisonment); the Criminal Law (Amendment) Act, 1983 (introduces crimes by husband and his relatives), amended by the Dowry Prohibition (Amendment) Act, 1986 (introduced Dowry Death); the Information Technology Act, 2000 (introduce e-crimes); the Criminal Law (Amendment) Act, 2013 (Expended sexual offences and enhance sentences therefor), etc.
The First Chapter (Sections 1-5) introduces the local jurisdiction and applicability of the Code. The Second Chapter (Sections 6-52) explicates the general explanations (definitions). The Third Chapter (Sections 53-75) talks about punishments and the Fourth Chapter (Sections 76-106) deals with general exceptions. The Fifth Chapter (Sections 107-120) explicates general rules of the abetment of offences and punishment therefor, whereas the Chapter VA deals with the offence of criminal conspiracy.
The Chapters VI to IX (Sections 121-171) deal with offences against the State, Armed Forces, Public Tranquillity and public servants. The Chapter IX-A (section 171A to171-I) deals with offence against election. The Chapter X (Sections 172-190) enumerates the offences of contempts of the lawful authority of public servants. The Chapter XI (Sections 191-229) deals with offences of false evidence and defences against public justice and the Chapter XII (Sections 230-263) deals with offences relating to coin and government stamps. The Chapter XIII (Sections 264-267) deals with offences of offences relating to weights and measures and the Chapter XIV (Sections 268-294) deals with offences affecting the public health, safety, convenience, decency and more. The Chapter XV (Sections 295-298) deals with offences relating to religion and the most important Chapter of the Code, Chapter XVI (Sections 299-377) deals with offences of affecting the human body.
The Chapter XVII (Sections 378-462) deals with offences against property and the Chapter XVIII (Sections 463-489) deals with offences relating to documents and to property marks; and the Chapter XIX (Sections 490-492) deals with offences of the criminal breach of contracts of service. The Chapter XX (Sections 493-498) deals with offences relating to marriage, whereas the Chapter XXA (Section 498A) deals with offence of cruelty by husband and relative of husband. The Chapter XXI (Sections 499-502) deals with offences of defamation and the Chapter XXII (Sections 504-510) imposes criminal liability in case of criminal intimidation, insult and annoyance and the Chapter XXIII (Section 511) establishes criminal liability in case of attempts to commit offences.
(2) JURISDICTION AND APPLICABILITY OF IPC
As a matter of fact all over the world countries have been asserting such jurisdictions in various contexts, as a general principle of law “All crime is local. The jurisdiction over the crime belongs to the country where the crime is committed”. The Indian Penal Code shall extend to the whole of India except the State of Jammu and Kashmir. It is clear from reading of bare text of sections 2, 3 and 4 of the IPC, that section 3 and 4 deal with offences committed beyond the territorial limits of India and section 2 obviously and by contrast refers to offences committed within India.
(2.1) OFFENCE COMMITTED WITHIN INDIA : TERRITORIAL JURISDICTION
Section 2 of IPC explicate that every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which, he shall be guilty within India. It determines the liability and punishment of persons who have committed offences within India.
(a) WATER TERRITORIAL JURISDICTION
According to Article 297 of the Constitution says that the limits of the territorial waters, the continental shelf, the exclusive economic zone, and other maritime zones, of India shall be such as may be specified, from time to time, by or under any law made by Parliament. The Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976, explicates the water territory, which may be summarized as –
- Territorial Waters.- The limit of the territorial waters of India extends to 12 Nautical Miles measured from the appropriate baseline.
- Contiguous Zone.- The contiguous zone of India is an area beyond and adjacent to the territorial waters, and the limit of the contiguous zone is the line every point of which is at a distance of 24 Nautical Miles from the nearest point of the baseline.
- Exclusive Economic Zone.- The exclusive Economic Zone of India is an area beyond and adjacent to the territorial waters and limit of such zone is 200 Nautical Miles from the appropriate baseline.
- Continental Shelf.- The continental shelf of India comprises the sea bed and sub-soil and the sub-marine areas that extend beyond the limit of its territorial waters throughout the natural prolongation of its land territory to the outer edge of the continental margin or to the distance of 200 Nautical Miles from the appropriate baseline.
The Supreme Court held that the sovereignty of India does not extend beyond the territorial waters of India and therefore, the extension of the IPC beyond the territorial waters of India is impermissible.[2] No doubt, under the Maritime Zones Act, the Parliament shall have jurisdiction to make laws for territorial waters and to determine or alter limit of territorial waters which affect legitimate interests of country.[3]
The question before the Supreme Court was raised whether Kerala State Police had jurisdiction to investigate incident of shooting of two Indian fishermen on board their fishing vessel? The Supreme Court held that admittedly incident took place at distance of about 20.5 nautical miles from coastline of State of Kerala. The State of Kerala had no jurisdiction over Contiguous Zone and even if provisions of IPC and the CrPC were extended to Contiguous Zone, it did not vest State of Kerala with powers to investigate and, thereafter, to try offence. The incident took place within Contiguous Zone over which, both under provisions of Maritime Zones Act, 1976 and United Nations Convention on Law of Sea, 1982 (UNCLOS), India was entitled to exercise rights of sovereignty. It is clear that power to investigate the offence had to be conducted only at level of Federal or Central Government and could not be subject matter of proceeding initiated by Provincial/State Government. Thus Union of India was directed, in consultation with Chief Justice of India, to set up Special Court to try case and to dispose of same in accordance with provisions of Maritime Zones Act, 1976, IPC, Criminal Procedure Code, 1973 and most importantly, provisions of UNCLOS 1982.[4]
It is clear that state has jurisdiction up to 12 nautical miles (water territories) and any crime committed by any person, irrespective of his nationality, will be inquired and tried by the State had jurisdiction over there. On the hand, India has water territorial jurisdiction up to 200 Nautical Miles and if any offence has been committed after 12 nautical miles and before 200 nautical miles, the offence shall be inquired by the officer and tried by the court, appointed and published in official gazette by the Central Government.
(b) APPLICABILITY TO FOREIGNER COMMITTED OFFENCE WITHIN INDIA :
Section 2 of the Code makes the Code universal in its application to every person in any part of India for every act or omission contrary to IPC. The term ‘every person’ has wider connotation and includes citizens, non-citizens foreigners in India or visiting India. Foreigners who enter Indian territories by accepting the allegiance and protection of Indian Law are also covered under IPC. The term ‘every person’ is believed to have made it clear that a foreigner is subject to IPC for an act committed within India. The term ‘every person’ also includes a company or an association or body of persons whether corporate and not.
A foreigner is as much liable for committing an offence as a resident is. A foreigner can neither take the plea of ignorance of law, not that he was unaware of the criminal nature of the act in question since it was not an offence in his country. The criminal liability for an offence arises on the bases of the laws applicable in the country where the offence is committed, and not the bases of laws applicable in the country of the person committing it.
(c) PERSONS EXEMPTED FROM APPLICABILITY OF IPC
President of India or Governor of a State.- According to Article 361 of the Constitution of India, no criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor of a State, in any court during his term of office. No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any court during his term of office.
Foreign Sovereigns.- According to international law, foreign states and foreign sovereigns are not subject to the jurisdiction of national courts. As far as applicability of this rule in terms of criminal proceedings is concerned, we adhere to the rule.
Diplomats and their family.- Ambassadors or commissioners and certain members of diplomatic staff enjoy immunity from the jurisdiction of criminal courts. He is representative of the independent sovereign of the state sending him. The privilege extends to the members of his family. For all jurisdictional purposes an ambassador or diplomat and their family members are supposed to be in his own country. Action can be taken against them by the state government to whom they are representing. India has exempted them by enacting the Diplomatic Relations (Vienna Convention) Act, 1972.
Alien enemies.- In respect of acts of war alien enemies cannot be tried by criminal courts. If an alien enemy commits a crime unconnected with war, e.g., theft, he would be triable by ordinary criminal courts.
Foreign army.- When armies of one state are by consent on the soil of a foreign state they are exempted from the jurisdiction of the State on whose soil they are.
Warships.- Man-of-war of a state in foreign waters are exempted from the jurisdiction of the State within whose territorial jurisdiction they are. This is in accordance with principles of international law.
Officers of UN and its institutions.- The United Nations’ representatives are entitled to immunity against criminal prosecution by virtue of the Vienna Convention on Diplomatic relations adopted on 18th April 1961 and the Diplomatic Relations (Convention) Act, 1972.
(2.2) OFFENCE COMMITTED BEYOND INDIA : TERRITORIAL JURISDICTION
Section 3 of the Code says that any person liable, by any Indian law to be tried for an offence committed beyond India shall be dealt with according to the provisions of this Code for any act committed beyond India in the same manner as if such act had been committed within India.
Hijacking.- Where an offence of hijacking under the Anti-Hijacking Act 1982 is committed outside India, the person committing such offence may be dealt with a respect thereof as if such offence had been committed at any place within India at which he may be found. But the aircraft should be registered in India or lease out to Indian citizen; or the alleged offender is a citizen of India or is on board the aircraft in relation to which such offence is committed when it lands in India or is found in India.
The Investigation of hijacking case.- The Central Government may, by notification in the Official Gazette, confer on any officer of the Central Government, powers of arrest, investigation and prosecution exercisable by a police officer under the CrPC, 1973. All officers of police and all officers of Government are hereby required and empowered to assist the officer of the Central Government in the execution of the provisions of this Act.
The section 3 clearly indicates that it is implicit therein that a foreigner who commits an offence within India is guilty and can be punished as such without any limitation as to his corporeal presence in India at the time. For if it were not so, the legal fiction implicit in the phrase “as if such act had been committed within India” in section 3 would not have been limited to the supposition that such act had been committed within India, but would have extended also to a fiction as to his physical presence at the time in India.
(2.3) EXTENSION OF CODE TO EXTRA-TERRITORIAL OFFENCES
According to section 4 of the Code, the provisions of this Code apply also to any offence (includes every act committed outside India which, if committed in India, would be punishable under this Code) committed by –
(1) any citizen of India in any place without and beyond India;
(2) any person on any ship or aircraft registered in India wherever it may be;
[(3) any person in any place without or beyond India committing offence targeting a ‘computer resource’[5] located in India.][6]
Illustration.- A, who is a citizen of India, commits a murder in Uganda. He can be tried and convicted of murder in any place in India in which he may be found.
In addition to section 4 of IPC, section 188 of the CrPC is in fact one such assertion by the Parliament of the claim to extra-territorial jurisdiction. It deals with the offences committed outside India, which stipulates that when an offence is committed outside India (a) by a citizen of India, whether on the high seas or elsewhere; (b) by a person, not being such citizen, on any ship or aircraft registered in India, he may be dealt with in respect of such offence as if it had been committed at any place within India at which he may be found.
It is relevant to note here that from section 4 of IPC and 188 of the CrPC it is clear that even if the offence is committed by a citizen of India outside the country the same is subject to the jurisdiction of courts in India. However, in the case, parties or one of the parties is required to be the citizen of India.[7]
The corporeal presence of the accused in the country is not essential to assert the criminal liability.- The appellant convicted for offence of cheating and sentenced. The convictions and sentences confirmed in appeal by High Court. The contract appears to have been made for payment of price in sterling at Karachi by subsequent arrangement payment was to be made in Bombay in Indian currency. The appellant was Pakistani national and during entire period of commission of offence never stepped into India and was only at Karachi contended that he has committed no offence punishable under IPC and cannot be tried by Indian Court. The Supreme Court held that even on the assumption that the appellant has ceased to be an Indian citizen and was a Pakistani national at the time of the commission of the offence, he must be held guilty and punished under the IPC notwithstanding his not being corporeally present in India at the time.[8]
No need of approval from central government.- Appellant is a non resident Indian (NRI) who never visited India in relation to criminal conspiracy contented that no proceedings can be initiated against him without approval of Central Government. The court held that physical absence of appellant irrelevant and fraud committed by sending forged letters to India cannot be treated as an offence committed outside India.[9] The requirements are, therefore, (i) commission of an offence; (ii) by an Indian citizen; and (iii) that it should have been committed outside the country.
Bottom of Form
In terms of section 4 of the IPC, the Indian courts will have jurisdiction to try an accused only if the accused is a citizen of India even if the offence was committed outside India or by any person on any ship or aircraft registered in India wherever it may be.
(3) MEANING AND ELEMENTS OF A CRIME
It is very difficult to define any principle, rule or philosophy in a universal acceptance. It is clear that there is no universal definition of the term ‘crime’. Many prominent jurists have attempted to define Crime, let us examine some of them.
Blackstone defines crime as violation of the public rights and duties due to the whole community considered as a community in its social aggregate capacity.
According to Austin, “a wrong which is pursued at the discretion of the injured party and his representatives is a civil injury; a wrong which is pursued by the sovereign or his subordinates is a crime.”
According to Halsbury, “A crime is an unlawful act or default which is an offence against the public and renders the person guilty of the act or default liable to legal punishment.”
Since there is no satisfactory definition of Crime, the Indian Penal Code, 1860 uses the word ‘Offence’ in place of Crime. Section 40 of the IPC defines Offence as an act punishable by the Code. An Offence takes place in two ways, either by commission of an act or by omission of an act. But, the definition of particular offence should be read with illustration, explanation and exception to the definition or general exceptions.
This will include all circumstances, the conduct of the offender, and the consequences. When a Crime is done, any member of the public can institute proceedings against the person accused of the offence. There are basically two elements of the crime mens rea and actus reus (Crime = Mens rea + Actus reus + Absence of a defence).
(3.1) MENS REA (GUILTY MIND)
Mens rea means the guilty mind or wrongful intention and, is discovered in the definition of the offence; it is words like ‘intention’, ‘recklessly’, ‘with malice aforethought’ and so forth. When interpreting statutes, it is a Common Law presumption that mens rea is necessary in all crimes. This rule can only be replaced if an Act of Parliament expressly or impliedly excludes the necessity of mens rea.
There is no crime, large or small, without an evil mind. The idea is expressed by maxim “actus non facit reum, nisi mens sit rea”. This maxim lays down that the intent and the act must both concur to constitute a crime. The act itself does not constitute a crime unless done with a guilty intent. This is not an artificial principle drafted on any particular system of laws, but is it doctrine of universal application based on man’s moral sense. It is the combination of act and evil intent distinguishes civil from criminal liability.
In the IPC 1860, mens rea is expressed as “actus non facit reum nisi mens sit rea” as a fundamental principle for penal liability. Intent and Act, both must concur to constitute a crime. An act itself is no crime, unless it is coupled with an evil or criminal intent.
(3.2) ACTUS REUS (PHYSICAL ELEMENT)
The physical element is wrongful act, which is extremely manifested. Actus reus refers to the actions (or in rare cases the failure to act/the omission) of the accused; that is that the accused actually did the act. This act should be prohibited and punished by the law. It may be differ according to local jurisdiction. For an example, adultery is an offence in India but not in many countries. Similarly, liquor is prohibited in some of states but allowed in others, etc. act is different from the moral act. Not every moral act amounts to criminal act and vice-versa. Adultery, prostitution and various forms of illegal relations are different kinds of crimes and immorality. Therefore, it is necessary the actus rea must be supplement by actus reus.
(4) STAGES OF A CRIME
The initiation of any crime is the intention of doing some illegal act and when the person executes that intention, the offence is completed. It passes through the stages, namely – (a) Intention; (b) Preparation; (c) Attempt; and (d) Successful act.
(a) INTENTION :
Intention is the direction of the conduct towards the object chosen upon considering the motives, which suggest the choice. However, the law does not take the notice of an intention without an act. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for unless there be some external act, which shows that progress has been made in the direction of it or toward maturing and affecting it. But, the movement it emerges from that stage, it ceases to be an intention and develop into preparation. Even the expression of an intention may be an act sufficiently criminal as in the case of criminal intimidation, insult or annoyance. It may be a complete offence as in the case of sedition. But otherwise even the expression of an intention is not offence.
For instance if A says to B he intending to steal his watch, A could not be punished for the mere expression of his intention. If, A was to follow B under such circumstances as irresistibly point to determination to pick B’s watch, even then he could not be punished, as he is at the preparatory stage of the offence which falls of an attempt as in as such not punishable.
(b) PREPARATION
Preparation consists in devising or arranging the means or measures necessary for the commission of n offence. The provision of the Section does not extend to make punishable as attempts act done in the mere stage of preparation. Mere preparation is also punishable under the following four cases in IPC – (i) making preparation for waging war against the Government of India under section 122; (ii) to makes preparation to commit depredation, on the territories of any Power in alliance or at peace with the Government of India under section 126; (iii) making preparation to commit dacoity under section 399; and (iv) assembly for the purpose of dacoity under section 402.
Since there are cases in which a preparation is not punishable, it becomes necessary to see if a working rule cannot be advised to test when an act cases to be preparation becomes an attempt. Now, the preparation to commit an offence consists in devising or arranging the means or measures necessary for the crime. In one sense everything however remotely connected with the commission of the crime may be regarded as preparation towards it.
(c) ATTEMPT TO COMMIT CRIME
Normally, the attempt of the crime is specified crime in India and it is along with the section or next to that section. Where an attempt of the offence is not defined as specific offence, it will be treated under Section 511. Section 511 says that punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.
Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.
(d) SUCCESSFUL ACT (OFFENCE) :
When any attempt to commit a crime is successful, then the crime itself is committed. However, when this act has done in good faith and falls in the general exemption, it is not an offence.
[1] Thomas Macaulay to Zachary Macaulay, Calcutta, 12 October 1836; see Thomas Pinney ed. The Letters of Thomas Babbington Macaulay Volume 3,1834-41 (Cambridge: Cambridge University Press, 1976), 193.
[2] Aban Loyd Chilies Offshore Ltd. v. Union of India, (2008) 11 SCC 439.
[3] Republic of Italy through Ambassador v. Union of India, 2013 (1) SCALE 462.
[4] Republic of Italy through Ambassador v. Union of India, 2013 (1) SCALE 462.
[5] ‘Computer resource’ means computer, communication device, computer system, computer network, data, computer database or software. [Section 2(1)(k) of the Information Technology Act, 2000]
[6] Clause (3) was inserted by Act 10 of 2009, section 51 with effect from 27.10.2009.
[7] Fatma Bibi Ahmed Patel v. State of Gujarat, AIR 2008 SC 2392 : (2008) 6 SCC 789.
[8] Mobarik Ali Ahmed v. State of Bombay, AIR 1957 SC 857.
[9] Ajay Agarwal v. Union of India, AIR 1992 SC 1637 : (1993) 3 SCC 609